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When is a game patent allowed? What are the determining factors? For instance I have devised a simple board game. It would be best played as a computer game. And technically it would probably be considered a video game.

Is there a way to claim it all in a single patent? Could I file as a game played on a computer and later use my board game as proof it is not an abstract idea?

Guidance please. Thank you.

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Games are in quite a grey area. Fundamentally a game is nothing more than a set of rules. While the novelty and non-obviousness of such a set of rules is relatively easy to assess, the difficulty arises in whether the set of rules is an abstract method (and therefore not eligible subject matter).

The Court of Appeals for the Federal Circuit ruled, in In re Smith that a new kind of card game was not patent-eligible as it was an abstract idea. They opined:

Abstract ideas, including a set of rules for a game, may be patent-eligible if they contain an "'inventive concept' sufficient to 'transform' the claimed abstract idea into a patent-eligible application. … But appending purely conventional steps to an abstract idea does not supply a sufficiently inventive concept.

You have suggested that your game could be equally played as a physical board game or as a video game. This suggests to me that there is nothing particularly interesting or novel about the hardware with which you would be implementing your game: all you really have is a new set of rules. This would therefore seem to be an abstract idea which is patent-ineligible, regardless of how you claim it.

  • I'm not sure Smith can be taken as definitive--the application had problems related to non-novelty. My recollection is that they were attempting to patent a new method of betting on blackjack, which was deemed a business method. From the ruling "That is not to say that all inventions in the gaming arts would be foreclosed from patent protection under § 101. We could envisage, for example, claims directed to conducting a game using a new or original deck of cards potentially surviving step two of Alice." – DukeZhou Aug 29 '18 at 18:47
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To add more info, in Europe (before the EPO) games are considered non-patentable.

Article 52(2) EPC reads: The following in particular shall not be regarded as inventions within the meaning of paragraph 1: (a) discoveries, scientific theories and mathematical methods; (b) aesthetic creations; (c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers; (d) presentations of information.

  • I was looking at the guidelines for Japan and they regard game mechanics merely as "arbitrary collections of rules" which is the opposite of what constitutes a commercially viable game. The underlying issue is that, sans patent protection, game represent a unique category of Intellectual Property with no form of protection. (IP covered by copyright and trademark do not constitute games, rather, artistic and commercial elements applied to games, which are precisely calibrated sets of rules that produce novel output and constitute commercially viable products.) – DukeZhou Aug 29 '18 at 18:51
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This is currently a grey area. The uncertainty began with the 2013 Alice ruling, and is still being worked out.

After Alice, at a high-level, the knee-jerk reaction was that game mechanics and software would no longer be patent eligible. Since that ruling, which is problematic in that what constitutes "abstract" is not well defined, there has been some significant walk-back.

Currently there is a trend to tie software and game mechanics into databases because of a software grant involving databases. (This is merely a strategy for dealing with the review board, and doesn't get to the root of the issue.)

I can get more technical, and provide some examples, if requested, but I've covered this subject in depth in other answers.

The best legal advice I ever got in this regard is that the only certainty in patent law is uncertainty (continual chaos) regarding the guidelines.

The US has a long history of precedent regarding the eligibility of novel game mechanics, and there seem to have been post-Alice grants that constitute pure methods.

Speaking from experience, a major consideration in whether to pursue a game is cost/benefit. Utility patent applications can be expensive with no guarantee of a grant. The current "grey area" status for game mechanics significantly increases that risk.

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